In September, 1888, the plaintiff, in consideration of §5500, conveyed to the defendants a tract of land, described by metes and bounds and as "containing eight hundred acres, more or less.”
All the consideration has been paid except this note now in suit, of §2500 and interest, payable in two years from its date.
The defendants, at the court below, contended that they were induced to purchase by relying on the plaintiff’s fraudulent representations that the premises contained eight hundred acres, when, in fact, a subsequent survey showred there was only the fraction of an acre more than one half of the quantity represented.
The jury returned a verdict for §2000 only, making an allowance to the defendants of §913 for the deficiency. They must, therefore, have found the plaintiff guilty of either misrepresent*366ing the quantity of land knowing it to be false, or asserting the false quantity without knowing whether it was true or false. Harding v. Randall, 15 Maine, 332; Hammatt v. Emerson, 27 Maine, 308.
The plaintiff makes no formal complaint against the verdict. The defendants, however, complain that the jury did not make a sufficient allowance for the fifty per cent deficiency of land; that as they had received only one half of the land bargained for, the plaintiff should receive only one half of the consideration. But as the defendants had already paid more than one half, they ought not pay any more. And the defendants undertake to trace their cause of grievance to an instruction in relation to the number of acres which the ivords "more or less” might properly be allowed to cover.
After stating quite fully'- the meaning of that phrase as the same is laid down in cases of acknowledged authority, the judge then added what the defendants claim was erroneous and to their disadvantage, viz; "A deficiency of a few acres, perhaps a dozen, or even fifty in such a large parcel as eight hundred acres more or less, might be allowed by these words.”
Considered as a construction of the deed, the instruction as an illustration is sustained by a very large number of authorities. The subject matter has often arisen and created much discussion in the books. Chanceller Kent, upon authorities cited, declares the general rule to be "when it appears by definite boundaries, or by words of qualification, as 'more or less,’ or words of like import, that the statement of the quantity of acres in the deed is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity — if there be no intermixture of fraud in the case.” 4 Kent, Com. *467. Judge Story entertained a like view. Stebbins v. Eddy, 4 Mason, 414. See also 1 Sug. Vend. (Perk, ed.) § III, 489, and notes; Pierce v. Faunce, 37 Maine, 63; Hall v. Mayhew, 15 Md. 551; Smith v. Evans, 6 Binn. 102.
When the difference between the actual and the stated quantity thus qualified, is so great as to naturally raise the presumption of fraud or gross mistake, the purchaser has his remedy. Same cases.
*367What precise difference should be regarded as evidence of fraud has not been determined that we are aware of. It has been held, however, that when it is so great as to warrant the conclusion that the parties would not have contracted had the truth been known, then the party injured is entitled to relief in equity, on the ground of gross mistake. Weart v. Rose, 16 N. J. Eq. 290, 297-8, and cases there cited. Chancellor Kent says : "A very great difference — as thirty per cent for instance — would entitle the party to relief.” 4 Kent, Com. *467, note b. A very large number of cases on both sides of the line are collected in 15 Am. &Eng. Ency. 718 et seq. Fifty acres off from "eight hundredacres, moreorless,” is but a fraction over six per cent. We think, therefore, that the instruction if confined to the construction of the deed can afford no leg'al cause of complaint to the defendants.
But the case as presented to the jury was not based upon a construction of the deed; but upon fraudulent representations proved by oral testimony, which was undoubtedly admissible. B. P. & B. L. Soc. v. Smith, 54 Md. 187, 202. The jury found that the plaintiff unqualifiedly assured the defendants that the premises comprised eight hundred acres, and that relying upon that assurance they purchased. If the same unqualified statement had been made in the deed, the defendants would undoubtedly have been entitled to a remedy for the material difference ; for quantity would then be regarded as a material consideration entering into the essence of the contract. Marbury v. Stonestreet, 1 Md. 147. Why should fraud place him in any better condition ?
.The charge, which is made apart of the exceptions, shows that the instruction complained of was not intended to be confined to a construction of the deed, but was expressly made applicable to the case as presented. The judge said: "However, if you should allow a reasonable margin, would seven hundred and fifty acres be an unreasonable amount, if you should conclude there was misrepresentation, as a basis upon which to calculate, four hundred acreshaving been proved to be the amount that was actually conveyed ? If seven hundred and *368fifty would be a reasonable basis, why then you should deduct the four hundred acres from the seven hundred and fifty and compute the damages upon that.” We think the instruction when applied to the fraudulent representation was erroneous.
Exceptions sustained.
Peters, C. J., Walton, Libbey, Foster and Haskell, JJ., concurred.